expert analysis in New York

2013Co. v Oppenheim, 72 AD3d 489 [1st Dept 2010]; CPLR 3101 [c]).

2013Co. v Oppenheim, 72 AD3d 489 [1st Dept 2010]; CPLR 3101 [c]).

2013Chisdak testified, however, that further testing would be of limited value because existing medical tests are not precise enough to identify the exact substance causing his condition. * Significantly, the Board found reasonable Chisdak’s scepticism of a possible non-work-related cause for the condition given the “overwhelming evidence that claimant regularly worked with and inhaled hazardous substances known to cause acute and chronic lung and upper respiratory health effects” and, further, proof that “claimant’s condition waxed and waned depending upon the amount of time he spent at work.” No

2013Chisdak testified, however, that further testing would be of limited value because existing medical tests are not precise enough to identify the exact substance causing his condition. * Significantly, the Board found reasonable Chisdak’s scepticism of a possible non-work-related cause for the condition given the “overwhelming evidence that claimant regularly worked with and inhaled hazardous substances known to cause acute and chronic lung and upper respiratory health effects” and, further, proof that “claimant’s condition waxed and waned depending upon the amount of time he spent at work.” No

2025We reject that contention inasmuch as defendant "ignores the fact that he initially benefitted from a favorable ruling barring introduction of the [testimony regarding the examination], and then sought to utilize that ruling as a sword, to his advantage, by mischaracterizing [the victim's medical examination]" ( People v Rojas , 97 NY2d 32, 36 [2001]; see People v Spellicy , 217 AD3d 1359 , 1360 [4th Dept 2023], lv denied 41 NY3d 1021 [2024]; People v Duplessis , 16 AD3d 846 , 847 [3d Dept 2005], lv denied 4 NY3d 853 [2005]).

2025We reject that contention inasmuch as defendant "ignores the fact that he initially benefitted from a favorable ruling barring introduction of the [testimony regarding the examination], and then sought to utilize that ruling as a sword, to his advantage, by mischaracterizing [the victim's medical examination]" ( People v Rojas , 97 NY2d 32, 36 [2001]; see People v Spellicy , 217 AD3d 1359 , 1360 [4th Dept 2023], lv denied 41 NY3d 1021 [2024]; People v Duplessis , 16 AD3d 846 , 847 [3d Dept 2005], lv denied 4 NY3d 853 [2005]).

2025Defendant has not established that his trial counsel's failure to call an expert to challenge his Intoxilyzer reading was objectively unreasonable or resulted in prejudice under the state or federal standards ( see People v Everette , 148 AD3d 513, 514-515 [1st Dept 2017], lv denied 29 NY3d 1078 [2017]).

2019Pursuant to County Law § 722-c, upon a finding of necessity, a court shall authorize expert services on behalf of a defendant, and only in extraordinary circumstances may a court provide for compensation in excess of $1,000 per expert ( see People v Clarke , 110 AD3d 1341, 1342 [3d Dept 2013], lv denied 22 NY3d 1197 [2014]; [*2]People v Koberstein , 262 AD2d 1032 , 1033 [4th Dept 1999], lv denied 94 NY2d 798 [1999]).

2018We therefore conclude that defendant failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's alleged shortcomings ( see People v Nickel , 14 AD3d 869, 872 [3d Dept 2005], lv denied 4 NY3d 834 [2005]; see generally People v Benevento , 91 NY2d 708, 712 [1998]), and thus no hearing was necessary on the motion.

2014The majority acknowledged that the People’s expert analysis- — -presented in the People’s affirmation and not by way of expert affidavit — could not provide a basis for denial of the motion as those opinions were not in admissible form (109 AD3d at 404 n 3).

2014The dissenters argued that "defendant met his burden by offering sworn evidence of mtDNA analysis showing that the hairs 4 The majority acknowledged that the People's expert analysis -- presented in the People's affirmation and not by way of expert affidavit -- could not provide a basis for denial of the motion as those opinions were not in admissible form (109 AD3d at 404 n 3). - 13 - - 14 - No. 219 from the perpetrator's hat were not his.

2001Defendant’s claim that the palmprint evidence should have been excluded as a sanction for the destruction of potential exculpatory evidence (see, Brady v Maryland, 373 US 83 ) resulting from the testing process selected by the police chemist is unpreserved and we decline to review it in the interest of justice.

1999We conclude from our examination of the existing record that defendant received effective assistance of counsel (see, People v Benevento, 91 NY2d 708, 713-714 ; People v Baldi, 54 NY2d 137 ).

1998In fact, the defendant failed to demonstrate that such testimony was available (see, People v Castricone, 224 AD2d 1019, 1020 ), or that the expert whom the defense counsel failed to call as a witness would have provided evidence to substantiate the affirmative defense (see, People v Skinner, 224 AD2d 916 ).

1998In fact, the defendant failed to demonstrate that such testimony was available (see, People v Castricone, 224 AD2d 1019, 1020 ), or that the expert whom the defense counsel failed to call as a witness would have provided evidence to substantiate the affirmative defense (see, People v Skinner, 224 AD2d 916 ).

1996Additionally, defendant has failed to demonstrate that the expert whom defense counsel failed to call as a witness would have provided evidence to substantiate the affirmative defense of extreme emotional disturbance (see, People v Graves, 194 AD2d 925, 927 , Iv denied 82 NY2d 719 ) "or that defense counsel’s decision not to bring forth [that] witness[ ] was clearly prejudicial to [defendant] and not the result of well-advised defense strategy” (People v Ford, 46 NY2d 1021, 1023 ).

1996Additionally, defendant has failed to demonstrate that the expert whom defense counsel failed to call as a witness would have provided evidence to substantiate the affirmative defense of extreme emotional disturbance (see, People v Graves, 194 AD2d 925, 927 , Iv denied 82 NY2d 719 ) "or that defense counsel’s decision not to bring forth [that] witness[ ] was clearly prejudicial to [defendant] and not the result of well-advised defense strategy” (People v Ford, 46 NY2d 1021, 1023 ).

1993Accordingly, even setting aside the fact that most, if not all, of the statements contained in the affidavit were expert opinions on the ultimate issue of petitioner’s guilt and thus technically not admissible (cf., People v Rowe, 172 AD2d 701, 702 ), with submission and acceptance of the affidavit petitioner’s desire to have the expert testimony considered in the deliberative process was all but fully realized.

1992Center, 157 AD2d 701 ).

1992Moreover, the plaintiff’s assertion that the attorney panel member was turned into an expert for the defense is not supported by the record (see, Bernstein v Bodean, supra; see also, Ceriello v Brunswick Hosp.